Citation Nr: 18147407 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-43 201 DATE: November 6, 2018 ORDER Reopening of the Veteran’s claim for entitlement to service connection for the loss of four fingers on the Veteran’s right hand is denied. Reopening of the Veteran’s claim for entitlement to service connection for chemical dependency is granted. Entitlement to service connection for chemical dependency is denied. Entitlement to service connection for a lower back condition is denied. Entitlement to service connection for a left leg/joint condition is denied. REMANDED Entitlement to service connection for a right leg/joint condition is remanded. FINDINGS OF FACT 1. Service connection for chemical dependency and the loss of four fingers on the right hand was denied in an unappealed April 1990 rating decision; no nexus was shown for the loss of fingers, and substance abuse was not a disability. 2. Evidence received since the April 1990 rating decision denying service connection for the loss of four fingers on the Veteran’s right hand is cumulative and redundant of the evidence of record, and does not raise a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 3. Evidence received since the April 1990 rating decision denying service connection for chemical dependency is neither cumulative nor redundant of the evidence of, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 4. The preponderance of the evidence does not show that chemical dependency, including alcohol and substance abuse, was caused or aggravated by a service-connected disability. 5. The preponderance of the evidence is against finding that the Veteran has a lower back disability that is due to a disease or injury in service, to include running, jumping, and pulling. 6. The preponderance of the evidence is against finding that the Veteran has a left leg/joint disability that is due to a disease or injury in service, to include running, jumping, climbing, and pulling. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for the loss of four fingers on the Veteran’s right hand based on new and material evidence have not been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for chemical dependency based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for chemical dependency have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for entitlement to service connection for a lower back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for entitlement to service connection for a left leg/joint condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1975 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision and a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin (Agency of Original Jurisdiction (AOJ)). The Board notes that the issue of entitlement to service connection for major depressive disorder (MDD) was denied in the May 2013 rating decision; the Veteran filed a timely notice of disagreement that included this issue. However, the AOJ issued a second rating decision granting the Veteran’s claim for MDD in a May 2016 rating decision. When perfecting his appeal to the Board via his VA Form 9, the Veteran observed that his claim for MDD was not included on the Statement of the Case (SOC) issued by VA, and requested a “new decision” be issued for this appeal. However, because the AOJ granted service connection for MDD in the interim, this represents a complete grant of the Veteran’s claim for entitlement to service connection for MDD. This issue, therefore, is no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.” 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for service connection for the loss of four fingers on the Veteran’s right hand The Veteran filed a claim for pension for the loss of four fingers on his right hand in June 1979. To support his claim, he submitted private treatment records from June 1979 indicating that he suffered a traumatic amputation of his second through fifth fingers on his right hand after he accidentally put his hand in a meat-grinder. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for the loss of four fingers on his right hand. The AOJ denied the Veteran’s claim for pension for the loss of four fingers on his right hand in in an August 1979 rating decision. He was provided notice of this action and his appellate rights via a letter dated August 27, 1979. In March 1990, the Veteran filed a claim for service connection and/or non-service connected pension for the loss of four fingers on his right hand. At that time, the Veteran’s STRs had been affiliated with the record, as well as additional VA treatment records. However, the documentation did not reflect that the Veteran suffered any injury to his right hand during service. As such, the Veteran’s claim for service connection and/or non-service connected pension for the loss of four fingers on his right hand was denied in an April 1990 rating decision. The Veteran was provided notice of this decision and his appellate rights by letter dated April 26, 1990. However, while the Veteran submitted a notice of disagreement, he failed to submit a VA Form 9 after the issuance of an SOC. Furthermore, he did not submit new or material evidence pertaining to the loss of four fingers on his right hand within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the April 1990 final AOJ rating decision includes additional VA treatment records and VA examinations. However, this evidence does not raise the possibility of substantiating the Veteran’s claim. Each reference to the amputation of the Veteran’s fingers makes note that it occurred in an industrial accident post-service and is in no way related to his time in the Army. The Board finds that the information provided and evidence associated with the Veteran’s claims file is insufficient to permit reopening his claim for entitlement to service connection for the loss of four fingers on his right hand, and the claim remains denied. 2. Whether new and material evidence has been received to permit reopening the Veteran’s claim for service connection for chemical dependency The Veteran filed a claim for service connection for chemical dependency in March 1990. At that time, the evidence of record included unrelated private treatment records, the Veteran’s service treatment records (STRs) that made no mention of an alcohol or drug abuse problem, and VA treatment records. The latter documentation, added to the file in May 1982, referenced that the Veteran had a substance abuse problem and was known to abuse both alcohol and a variety of drugs, including heroin, cocaine, valium, LSD, and marijuana. Other VA correspondence of record from August 1983 confirmed that the Veteran was hospitalized for alcohol detoxification and subsequently transferred to an alcohol dependent treatment program. The Veteran provided nothing else in the form of medical records or lay statements pertaining to his claim for chemical dependency. The AOJ denied the Veteran’s claim for service connection for chemical dependency in an April 1990 rating decision, indicating that this condition could not be related to his time in service. Service connection for chemical dependency was denied in an April 1990 decision on the grounds that such was not a disability for VA purposes. The Veteran was provided notice of this decision and his appellate rights by letter dated April 26, 1990. However, while the Veteran submitted a notice of disagreement pertaining to other issues decided in the April 1990 rating decision, he did not appeal the denial of entitlement to service connection for chemical dependency. Furthermore, he did not submit new or material evidence pertaining to his chemical dependency within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Since April 1990, the Veteran has been service-connected for a depressive disorder. In conjunction with such, it is alleged that he was self-medicating, and hence his substance abuse was a secondary condition and therefore service connection was allowable. Reopening of the claim is appropriate. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 3. Entitlement to service connection for chemical dependency Service connection on a direct basis for substance abuse is precluded. There is a limited exception to this doctrine when there is clear medical evidence establishing that alcohol or drug abuse was acquired as secondary to a service-connected disability, itself not due to willful misconduct. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Presently, the only condition for which the Veteran is service-connected is MDD. The January 2013 rating decision denied the Veteran’s claim for entitlement to service connection for chemical dependency because he was not service connected for any disability at that time. When the Veteran originally filed his claim, he claimed it as “depression/anxiety condition resulting in alcohol/drug abuse.” Records contemporaneous to the time the Veteran was abusing substances revealed a note from January 1988 that indicated he had been abusing cocaine since 1979 and alcohol since approximately 1981. Other VA treatment records associated with the claims file reflect that the Veteran abused drugs and alcohol from approximately 1983 to 1985, but that he has abstained from both since 1996 or 1997. Thereafter, a CAPRI VA treatment record from October 2012 noted the Veteran had been abstinent from drugs for 20 years. Nonetheless, during a February 2013 VA examination conducted to evaluate the Veteran’s mental health, the examiner diagnosed the Veteran with “polysubstance abuse in prolonged, sustained remission.” He noted that the Veteran had been using alcohol and drugs “off and on since his time in the military,” but that he has been abstinent for about 2 years due to his neurologic diagnosis and medications. A subsequent VA examination conducted in December 2015 noted that the Veteran had been sober since the last VA examination (presumably February 2013). That examiner noted “there is no evidence of a current/recent substance abuse disorder given report of no substance use since the last C&P [examination] and documented maintenance of sobriety in the medical record. Therefore, there is no evidence to support that a substance abuse disorder is proximately due to, the result of, or permanently aggravated beyond its natural progression by the diagnosed [MDD].” The Board thus finds that the Veteran is not entitled to service connection for chemical dependency. Though he was diagnosed with polysubstance abuse during the period on appeal, the medical opinion of record contends that his substance abuse is unrelated to his MDD. There is no other evidence of record, medical or otherwise, to suggest that his chemical dependency was caused or aggravated by his MDD. As such, the Veteran’s claim for entitlement to service connection for chemical dependency is denied. 4. Entitlement to service connection for a lower back condition The Veteran contends that his lower back condition stems from his time in service. Specifically, he attributes his condition to activities he participated in during service, including running, jumping, and pulling; the Board will concede that these activities qualify as in-service activities for service-connection purposes. The Veteran states that his lower back pain worsens with prolonged standing, prolonged walking, lifting between 10 to 15 pounds, and weather changes. The evidence of record suggests that the Veteran has had a diagnosis of degenerative joint disease of the lumbar spine since at least March 2003. In March 2007, imaging showed minimal lumbar spondylosis. An x-ray from March 2011 revealed mild intervertebral disc space narrowing and mild hypertrophic degenerative disease involving anterolateral vertebral body margins at L3-4 and L4-5 with otherwise normal osseous structures in the lumbar spine. A July 2012 MRI, when compared to the March 2007 imaging, revealed that the Veteran’s lumbar intervertebral degenerative disease had worsened. Based on these records, a current diagnosis for the Veteran’s lower back condition for service connection purposes is not in dispute. The Veteran underwent a VA examination in October 2015 for his lower back condition. At that time, he was diagnosed with degenerative arthritis of the spine, and the examiner, Dr. D.C., noted an MRI performed in April 2015 that showed “mild multilevel disc and facet degenerative changes [with] no critical spinal stenosis identified.” The examiner opined, however, that the Veteran’s degenerative disc disease is less likely than not caused by or the result of an in-service event, rationalizing that service treatment records did not show complaints, treatment, or a diagnosis of degenerative disc disease. Furthermore, Dr. D.C. explained that the Veteran was 57 years old and has generalized osteoarthritis, which is likely due to the normal aging process and has nothing to do with his service. It should also be noted that the Veteran’s VA treatment records reflect that in January 2003, the Veteran reported experiencing shooting pain from his lower back into his right left extremity and related his back problem to straining it at work, though without citing to a specific incident. Other records corroborate that the Veteran’s lower back pain began during the summer of 2002 with no specific trauma noted. There are no other nexus opinions of record to support the Veteran’s contention that running, jumping, and pulling while in service led to his present-day back problems; as such, the Board must deny the Veteran’s claim for entitlement to service connection for a lower back condition. 5. Entitlement to service connection for a left leg/joint condition The Veteran contends that he has a left leg/joint condition that is attributable to activities he participated in during service. He suggests that his ankle, knee, hip, and leg conditions were caused by running, climbing, jumping, and pulling while in service. The Veteran has been diagnosed with a number of conditions pertaining to his left lower extremity. As early as January 2003, he complained of trouble with his left knee; at that time, he indicated he had had pain for years, but that it had worsened within the last two months. An October 2012 MRI revealed mild degenerative changes in the Veteran’s left knee, and degenerative joint disease was again noted for the Veteran’s knee in June 2015. The Veteran was also noted as having mild degenerative changes of both hips on May 2014 imaging. In March 2015, a medical note recorded that the Veteran had “noted history and physical findings for left hip arthritis.” Elsewhere in the claims file, there was evidence that suggested the Veteran has both osteoarthritis and degenerative joint disease of the left hip. He was also allegedly diagnosed with chronic inflammatory demyelinating polyneuropathy around 2003. Based on these diagnoses, the Board will concede that the Veteran has a left leg/joint condition to satisfy the initial prong for service connection purposes. The Board will accept the Veteran’s contentions of running, climbing, jumping, and pulling as qualifying in-service activities for service-connection purposes, though it notes that at no point during service (as reflected on the Veteran’s STRs) did the Veteran complain of left leg/joint pain. The evidence of record does not suggest that any of the Veteran’s aforementioned left leg/joint conditions are etiologically related to his time in active duty service. In October 2015, the Veteran underwent VA examinations for his ankles, hip, and knee. During the ankle examination, he was diagnosed with bilateral ankle strain. The examiner said, though, that the Veteran’s bilateral ankle strain is less likely than not caused by or the result of his experiences in service. He rationalized that there were no records showing complaints, treatment, or diagnoses for this condition (though accurate for the left ankle, this is not true for the right ankle). He went on to say that he believes the Veteran’s polyneuropathy is the cause of his weakness, pain, and difficulty walking. This examination concluded with him stating that the October 2015 x-rays showed no evidence of arthritis or acute osseous injury in either ankle. During the Veteran’s examination for his hip, it was reiterated that he has osteoarthritis of the left hip. The examiner indicated that the Veteran’s left hip osteoarthritis is less likely than not caused by or the result of experiences he had during service. He again points out that the Veteran’s STRs are silent for any complaints, treatment, or diagnoses for any left hip condition. He also says that the Veteran “is 57 years old and…has generalized osteoarthritis…likely due to the normal aging process, and has nothing to do with his service.” Similarly, while the Veteran’s diagnosis of bilateral knee osteoarthritis was noted during the October 2015 VA examination for his knee, the examiner opined it was less likely than not that the Veteran’s bilateral knee osteoarthritis was caused by or the result of in-service activities. He points out that the Veteran’s STRs are silent for any complaints, treatment, or diagnoses for any knee injury or condition. He also says that the Veteran “is 57 years old and…has generalized osteoarthritis… likely due to the normal aging process, and has nothing to do with his service.” The Board thus finds that the Veteran’s left leg/joint condition(s) are not attributable to his time in service. In addition to the October 2015 examiner’s opinions as to the etiology of his ankle, hip, and knee conditions, the Board notes that the Veteran’s entrance and discharge examinations are silent for complaints regarding any of these body parts. Furthermore, his STRs do not contain any instances whereby the Veteran sought treatment for or complained about injury to his left ankle, hip, or knee. Medical records also do not suggest that the Veteran had any left leg condition until approximately 2003; though he complained about having pain “for years,” there are no records to corroborate his account. Medical records from 2003 also fail to suggest the Veteran had experienced pain since service. While the Board finds the Veteran to be credible, the evidence does not support finding for a positive nexus between his left leg/joint conditions and his active duty service and as such, the Board must deny his claim. REASONS FOR REMAND 1. Entitlement to service connection for a right leg/joint condition As noted with the issue of entitlement to service connection for the Veteran’s left leg/joint condition, the Veteran’s right leg/joint condition is heavily noted throughout the medical evidence of record. In February 2013, the Veteran underwent a VA examination for his ankle, where it was noted he injured his right ankle while in service. At that time, the Veteran relayed to the examiner, Dr. A.K., that he sprained both of his ankles while in service, spraining the right one so badly that he went to sick call for treatment. He alleged that his right ankle had caused him difficulty since service with constant pain and problems with balance and tripping. Dr. A.K. did not diagnose the Veteran with a current ankle disability, but noted he was diagnosed with polyneuropathy in 2003. She stated “although Veteran reports ankle pain following service, there is no objective evidence of reports of ankle pain in treatment notes following service starting in 1996 with reports of right side weakness and foot drop, later diagnosed with neuropathy. In my opinion, the current chronic condition of polyneuropathy is the cause of examination findings of weakness and loss of motion…with pain related to weakness causing stress to the ankle joint.” The Veteran underwent another VA examination in October 2015 for his ankles where he was diagnosed with bilateral ankle strain. This examiner opined that the Veteran’s bilateral ankle strain is less likely than not caused by or the result of an in-service event or injury. He rationalized his opinion by stating, however, that the Veteran’s STRs were silent for complaints, treatment, or a diagnosis of this condition, and noted that he believes the Veteran’s polyneuropathy is the cause of the Veteran’s weakness, pain, and difficulty walking. The Board notes that while the February 2013 VA examination considered the Veteran’s in-service injury, it did not diagnose the Veteran’s current bilateral ankle strain condition, nor did it appropriately provide a nexus opinion regarding whether the Veteran’s in-service right ankle injury led to his present-day ankle condition. Similarly, the October 2015 VA examination failed to take into consideration the in-service injury to the Veteran’s right ankle, instead noting that the Veteran’s STRs were silent for any ankle injury. As such, the Board will remand to obtain a VA examination that provides an appropriate opinion as to the etiology of the Veteran’s right ankle condition. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder updated VA treatment records, specifically those from April 2016 to present. 2. Schedule the Veteran for a VA Joints examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current diagnoses of the right ankle, and for each such, opine as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service, to include the April 1978 right ankle injury. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel